prevent Parliament from proclaiming any act of a subject to be treason, thereby subjecting him to all its terrible penalties. The doctrine of constructive treasons, created by servile judges, who held their office during the pleasure of the king, was used by them in such a way as to enable the sovereign safely to wreak vengeance upon his victims under the guise of judicial condemnation. If the king sought to destroy a rival, the judges would pronounce him guilty of constructive treason; in other words, they would so construe the acts of the defendant as to make them treason. Thus the king could selfishly outrage every principle of law and justice, while avoiding responsibility. No man's life or property was safe. The wealthier the citizen, the greater was his apprehension that the king would seize and confiscate his estates. The danger lay in the fact that the nature and extent of the legal crime of treason was indeterminate, or was left to arbitrary determination. The power to define treason, to declare from time to time who should be deemed in law to be traitors, was in its nature an arbitrary power. No government having that power would fail to become oppressive in times of excitement, and especially in civil war. As early as the reign of Edward III., Parliament put an end to these judge-made-treasons by declaring and defining all the different acts which should be deemed treason; and, although subsequent statutes have added to or modified the law, yet treason has at all times since that reign been defined by statute. POWER OF CONGRESS TO DEFINE AND PUNISH TREASON LIMITED. It was with full knowledge of the history of judicial usurpation, of the tyranny of exasperated govern ments, and of the tendency of rival factions in 1epublics to seek revenge on each other, that the convention which framed the constitution, having given no power to the judiciary, like that possessed by English judges, to make constructive crimes, introduced several provisions limiting the power of Congress to define and punish the political crime of treason, as well as other offences. The various clauses in the constitution relating to this subject, in order to a clear exposition of their meaning, should be taken together as parts of our system. ATTAINDER AND EX POST FACTO LAWs. The first and most important limitation of the power of Congress is found in Art. I. Sect. 9: "No bill of attainder, or ex post facto law, shall be passed." By prohibiting bills of attainder, no subject could be made a criminal, or be deprived of life, liberty, or property, by mere act of legislation, without trial or conviction. The power to enact ex post facto laws having been withheld, Congress could not pass "a statute which would render an act punishable in a manner in which it was not punishable when it was committed." No man's life could be taken, his liberty abridged, nor his estate, nor any part of it, seized for an act which had not, previously to the commission thereof, been declared by some law as a crime, and the manner and extent of punishment prescribed. Hence no law of Congress can make that deed a crime which was not so before the deed was done. Every man may know what are the See Fletcher v. Peck, 6 Cranch, 138. laws to which he is amenable in time of peace by reading the statutes. There can be no retrospective criminal legislation by any State, or by the United States. TREASON DEFINED BY STATUTE. These points having been secured, the next step was to define the CRIME OF TREASON. Countless difficulties and dangers were avoided by selecting from the English statutes one crime only, which should be deemed to constitute that offence. * The constitution provides that, "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Hence many acts are not treasonable which were so considered according to the law of England, and of the colonies and States of this country. Each State still retains the power to define and punish treason against itself in its own way. Nothing but overt acts are treasonable by the laws of the United States; and these overt acts must be overt acts of war. These acts must be proved either by confession in open court, or by two witnesses to the same act. Our ancestors took care that no one should be convicted of this infamous crime, unless his guilt is made certain. So odious was the offence that even a senator or representative could be arrested on suspicion of it. § All civil officers were to be removed from office on impeachment and conviction thereof. || And a person charged with treason against a State, and fleeing from that State to another, was to be delivered * Art. III. Sect. 3. + Ibid. Ibid. Art. II. Sect. 4. up, on demand, to the State having jurisdiction.* The crime being defined, and the nature of the testimony to establish it being prescribed, and conviction being possible only in " open court," the constitution then provides, that "Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." + CONGRESS HAVE UNLIMITED POWER TO DECLARE THE PUNISHMENT OF TREASON. By this article, the constitution has in express terms given to Congress the power to declare the punishment of treason; and the nature and extent of the punishment which they may declare are not limited. Congress may impose the penalty of fine, or imprisonment, or outlawry, or banishment, or forfeiture, or death, or of death and forfeiture of property, personal and real. Congress might have added to all these punishments the more terrible penalty which followed, as a consequence of attainder of treason, under the law of England, had the constitution not limited the effect and operation of that species of attainder. A COMMON ERROR. Some writers have supposed that this article in the constitution, which qualifies the effect of an attainder of treason, was a limitation of the power of Congress to This is an error. A declare the punishment of treason. careful examination of the language used in the in Constitution, Art. IV. Sect. 6. Art. III. Sect. 3. strument itself, and of the history of the English law of attainder, will make it evident that the framers of the constitution, in drafting Sect. 3 of Art. III. did not design to restrain Congress from declaring against the traitor himself, his person or estate, such penalties as it might deem sufficient to atone for the highest of crimes. Whenever a person had committed high treason in England, and had been duly indicted, tried, and convicted, and when final judgment of guilty, and sentence of death or outlawry, had been pronounced upon him, the immediate and inseparable consequence, by common law, of the sentence of death or outlawry of the offender for treason, and for certain other felonies, was attainder. Attainder means, in its original application, the staining or corruption of the blood of a criminal who was in the contemplation of law dead. He then became "attinctus - stained, blackened, attainted." CONSEQUENCES OF ATTAINDER. Certain legal results followed attainder, among which are the following: The convict was no longer of any credit or reputation. He could not be a witness in any court. He was not capable of performing the legal functions of any other man; his power to sell or transfer his lands and personal estate ceased. By anticipation of his punishment he was already dead in law,* except when the fiction of the law would protect him from some liability to others which he had the power to discharge. It is true that the attainted felon could not be murdered with impunity, but the law preserved * 3 Inst. 213. † Foster, 73. |
